By Jack Noland
As is so
often true, the devil really is in the details. Supreme Court rulings must
factor the tremendous weight of precedent, contemporary issues, and the nuanced
variability of each case in a stunning balance. By agreeing to hear Sibelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sibelius,
two new cases on religious exemptions to mandated birth control provisions, the
Court will sit at the confluence of several compelling legal and political
components. The cases center around religion and contraception, two
countervailing forces that have often been at odds in the light of American
legal philosophy. Yet the arguments and decision here will pull in other
topics, including corporate individualism, more general constitutional
questions on free exercise, and the context of the momentous ruling in National Federation of Independent
Businesses v. Sibelius (2012), or, the “Obamacare” case. Any pursuant ruling
will provide precedent for a multitude of popular (or controversial) issues,
and as such, this is unquestionably one of this Supreme Court term’s biggest
items. The justices must look back, as
they often do, on a long line of legal history, starting with the Constitution.
Even in the Constitution, the centerpiece of American law,
there are standout passages. The First Amendment, important for the rights it
protects, and influential in codifying the sort of liberties so often emulated
by countries in development around the globe, features two especially salient
clauses for these cases. “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,” the
amendment begins. A division between church and state was quite clearly
necessary to the American Founders, and such a cleavage has, in strife and in
concord, been an incomparable element of legal doctrine ever since. Just as the
government cannot ordain a state religion or persecute those who practice one,
nor can religion control the state. However, problems have often arisen between
competing ideals, especially in regards to human sexuality. Birth control has
long been a sticking point for many religious individuals and institutions, and
the Supreme Court is no stranger to cases on the issue.
In one of the most influential decisions of the last
fifty years, the Supreme Court ruled in Griswold
v. Connecticut (1964) that a Connecticut law banning contraceptives was
unconstitutional. he justices voted 7-2,
holding that “[t]hough the Constitution does not explicitly protect a general
right to privacy…Together, the First, Third, Fourth, and Ninth Amendments,
create a new constitutional right, the right to privacy in marital relations”
(Griswold). This decision was thus tremendously important in two regards, as it
generally recognized an implicit right to privacy, and specifically prohibited
laws hindering birth control. Griswold’s reach has been vast, as it
served as a pivotal precedent in such cases as Roe v. Wade (1973) and Lawrence
v. Texas (2002). Indeed, after Roe
affirmed the legality of abortions, contraceptives have become more palatable
to many who would rather see a fetus prevented than terminated. Arguments on
when life can be said to have begun, be it at conception, or at birth, have
made this debate more nuanced than before. Some would posit that a
contraceptive that rids the body of a newly conceived child would be a form of
abortion, which lends itself to another debate entirely. Moving into the present day, though, birth
control has become a long-legalized facet of both sexuality and reproductive
health.
The Patient Protection and Affordable Care Act (PPACA),
known at first derisively, and now colloquially as “Obamacare,” also touches
upon these issues. In mandating that
companies offer insurance for employees that includes coverage for
contraception, the law drew the ire of many who feel that this provision would
impede their religious freedom. In acknowledgment of the free exercise clause,
the act allows an exemption for churches and other non-profit religious
organizations. This is not Obamacare’s first time in the Supreme Court; the
2012 decision of National Federation of
Independent Businesses v. Sibelius allowed the PPACA to be enacted, by-and-large.
Crucially, the Court affirmed these religious allowances in that ruling simply
by virtue of not striking them down.
What, then, is different about these cases?
The Supreme Court has decided to hear Hobby Lobby and Conestoga because they address a previously unstudied distinction. The
PPACA declares that non-profit religious groups are permitted not to pay for
birth control in insurance plans, but does not provide an exemption for for-profit companies. The attorneys for
Hobby Lobby Stores and Conestoga Wood Specialties Corp. aver that as the owners
of the two companies practice religions that do not support the use of
contraceptives, their businesses should not be forced to adhere to this
provision of the law. The legal reinforcement for the two cases, 1993’s
Religious Freedom Restoration Act (RFRA), stipulates that the government must
not place a “substantial burden on a person’s exercise of religion.” While this
measure evidently covers an individual’s activities, the complexity of these
cases arises from the definition of “person” that the Court will use.
The question of personhood, especially in regards to
corporations, has been made a great deal clearer in the past few years. Controversially,
In Citizens United v. Federal Election
Commission (2010), the Supreme Court overturned a law that banned
corporations and unions from donating to political campaigns. As the First
Amendment protects the right to freedom of speech, and “prohibition on
corporate independent expenditures is an outright ban on speech, backed by
criminal sanctions,” this measure was deemed unconstitutional (Citizens). Furthermore, per First National Bank of Boston v. Bellotti (1978), the Supreme Court
“has recognized that the First Amendment applies to corporations… and extended
this protection to the context of political speech” (Ibid). In so many words,
the ruling declared that, with regards to the First Amendment, corporations could
be equivocated with people. Herein lies the question that makes these cases so
pertinent. If corporations are allowed to act as individuals in providing money
(and representative speech) to political campaigns, can they be considered to
have specific religious views, as a person might?
“We see no reason the Supreme Court would recognize constitutional
protection for a corporation's political expression but not its religious
expression," the Tenth Circuit Court of
Appeals wrote, siding in favor of Hobby Lobby (Sibelius). The case reached this
court after a district court denied a motion for a “preliminary injunction on the
basis of their RFRA and Free Exercise claims” and the Tenth’s earlier denial of
“relief pending appeal” (Sibelius 18). One
argument in favor of the Tenths Circuit’s ruling may be that the belief that a
corporation can “exercise the religious preferences of its owners — that is, by
what lawyers call a “pass through” theory, with the owners’ religious views
passing through to the corporation they have created” (Denniston). Conversely, Conestoga came out of the Third Circuit,
where it was denied injunctive relief. In the full appeal, Judge Cowen’s
majority opinion concluded “that
the law has long recognized the distinction between the owners of a corporation
and the corporation itself,” continuing to say that a “holding to the contrary—that
a for-profit corporation can engage in religious exercise—would eviscerate the
fundamental principle that a corporation is a legally distinct entity from its
owners” (Conestoga 30). While this decision is different than that of the Tenth
Circuit, Cowen’s final sentence begs an interesting question. If it followed
this logic, the Supreme Court might not even need to consider the ramifications
of the Citizens United ruling. A
business might indeed be deemed a person, with the First Amendment rights that
come therewith, including those of religion and speech. If the corporation were such a “legally distinct entity,”
separate from its owners, it may not have any intrinsic religious imperatives. Thus,
the members of the company would be entitled to their beliefs, but the company
itself, as a separate individual body, might not be imbued with any. In such a
scenario, it could be easy for the justices to deny a religious exemption to
such a business, as the company itself would not have any beliefs to begin with.
The drawback of such thinking is that it may disingenuously or coyly ignore the
fact that a corporation is fundamentally nothing without the people who
comprise it, who may have specific spiritual beliefs. However, the distinction
that could be made here is that a religious institution is by definition
devoted to a higher power than the people who work for it, and thus can perhaps
be said to have specific, innate moral values that a profit-seeking business
may not possess as clearly.
As it stands, there are several
issues the Supreme Court must weigh in hearing these two cases. Centrally, the
Court must examine the distinction between businesses and their
executives. Indeed, “it is not clear that a business that is formed
as a corporation, and engages in a strictly commercial kind of activity, can
have religious beliefs” (Denniston). It must also take into account the Religious
Freedom Restoration Act and its directives that ban government intercession
into, and hampering of, religious practice. As such, “the Court must decide whether the
pregnancy-related insurance coverage does, in fact, put a burden on the
individual owners, or whether any burden is on the business itself, rather than
its owners” (Ibid). In truth, this question may largely fall back upon the idea
of corporate personhood. The Citizens
United ruling is rather clear on this issue, and the First Amendment rights
that corporations have by virtue of that decision include religion, beyond the
symbolic speech that was salient to that specific case. This could be another
clear-cut example in this vein, and these institutions may win the exemption
they desire. However, such personhood, if upheld, could lead to questions of
whether these commercial businesses can have religious views of their own,
which makes analysis more difficult and a resounding victory for these companies
less easily attainable. Be it in partial or full favor for either party, the
Supreme Court has a very complex legal issue on its hands, and a ruling here
will surely be one of nuance and detail that may not neatly lend itself to
becoming a universal precedent for these questions.
References
Citizens United v. Federal Election Commission.
Supreme Court. 21 Jan. 2010. No. 08-205. Web. <http://www.law.cornell.edu/supct/html/08-205.ZS.html>.
Conestoga Wood Specialties Corp. v. Sibelius.
United States Circuit of Appeals, Third Circuit. No. 13-1144. 26 July 2013.
Web. <http://www2.ca3.uscourts.gov/opinarch/131144p.pdf>.
Denniston, Lyle. "Court to Rule on
Birth-control Mandate (UPDATED)." SCOTUSblog.
SCOTUSblog.com, 26 Nov. 2013. Web. 27 Nov. 2013.
"Griswold v. Connecticut." The Oyez Project at IIT Chicago-Kent College
of Law. Oyez.com. Web. 27 Nov. 2013.
Religious Freedom Reformation Act. Pub.L.
103-141. 16 Nov. 1993.
<http://www.justice.gov/jmd/ls/legislative_histories/pl103-141/act-pl103-141.pdf>.
Sibelius v. Hobby Lobby Stores. United States
Circuit of Appeals, Tenth Circuit. No. 12-6294. 27 June 2013. Web. <
www.ca10.uscourts.gov/opinions/12/12-6294.pdf>.
U.S. Constitution. Amend. I.
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